Arrest Raises Questions Surrounding Cell Phones

White River Junction— On Sept. 27, Hartford police arrested two men thought to be responsible for a series of elaborate graffiti paintings on rail cars in White River Junction. Officers had approached the men near the train tracks where the vandalism had occurred, and one of the men allegedly told police they were there for “art,” according to court records.

The police’s case dramatically improved moments after officers arrested the men. That’s when officers opened one of the men’s cell phones — without a warrant or, apparently, permission — and found several pictures of train cars that have been “tagged” with graffiti.

The cell phone bolstered the case against the suspects, but accessing it the manner that police did crossed into a murky legal question that has divided judges across the country: Are police allowed to root through a cell phone for evidence, without a warrant, after arresting someone?

While it has long been settled law that police can search someone’s wallet or other belongings during an arrest, civil liberties groups and others say that searching cell phones has nothing to with insuring safety or investigating the crime for which the person was arrested.

“A cell phone is really a computer that can make phone calls,” said Allen Gilbert, director of the Vermont chapter of the American Civil Liberties Union. “There’s all kinds of personal information on a cell phone that police should not have ready access to.”

Vermont and New Hampshire courts have not issued any definitive guidance on the issue, and courts across the country are divided on whether police can search a cell phone after an arrest.

The California Supreme Court has ruled that police can search the cell phones of people they have arrested without a warrant, and the Colorado Supreme Court upheld an officers warrantless search of a call history of a cell phone belonging to an alleged drug dealer. However, the Ohio Supreme Court and a California federal judge ruled that such searches violated the 4th Amendment’s protections against unreasonable search.

“If an officer arrests you legitimately, they are entitled to take your personal effects and inventory them,” said Vermont Law School professor Michele Martinez Campbell, a former federal prosecutor. “However, some courts have said the purpose of that rule is not fulfilled by looking inside a cell phone. It is percolating in a lot of places, and different courts are coming out different ways. It’s pretty up in the air.”

The search could become central to the prosecution of Hartford resident Brian Dow, the alleged graffiti artist whose cell phone was searched by police.

“We are aware of this issue and will certainly be researching it,” Dow’s attorney Brian Marsicovetere said in an interview. Marsicovetere declined further comment.

Windsor County State’s Attorney Robert Sand declined to comment on the case.

In an interview, Hartford Police Capt. Brad Vail said that his officers generally try to obtain warrants before searching suspects’ personal property — they ultimately did get one in the graffiti case — but he declined to comment specifically on this case.

“We always strive to get the warrant,” Vail said.

Dow and the other suspect, Daniel Barmore, 25, of Hartford both pleaded not guilty to felony charges in Windsor Superior Court in November. Barmore could not be reached for comment.

An affidavit filed by Hartford police officer Jason Pedro gives the following account.

In late September, railroad employees reported that several train cars had been used as canvases for fairly intricate paintings. On Oct. 2, around 6 p.m. police conducted a surveillance operation near the rail yard and spotted two men later identified as Barmore and Dow.

In the area, police found a glove with paint residue on the fingertips, and a black backpack in some brush.

Police asked Barmore and Dow what they were doing in the area: The men initially said they were out for a walk. When police asked again what the men were doing, Dow, who graduated from Johnson State College with an art degree, said “Art.” Barmore told police that they had been carrying “art supplies,” according to the affidavit.

The men were arrested and patted down. They both had cell phones, but for reasons not specified, police focused on Dow’s phone.

“Due to the widespread ability to remotely erase all content from a cellular phone and believing that there was an additional subject involved, possibly even acting as a lookout in the area and watching the arrest, I conducted a brief search of the cell phone for evidence,” Pedro wrote. “I observed multiple photos of spray paint vandalism ... I seized both cell phones.”

More than a week later, on Oct. 10, police obtained a search warrant for the phone and found more than 200 photographs of vandalized rail cars and bridges, along with text messages that seemed to show Barmore discussing tagging.

“Painting with the homies ... White river my dude,” one of the messages said, according to court records.

Gilbert, from the ACLU, questioned the primary rationale for initially searching the phone without a warrant: The officers’ concern that the information on the phone could be immediately erased.

“I don’t know if it’s a credible claim that the information could be erased if they had to get a warrant,” Gilbert said. “They are going to have to say how they thought the evidence could be destroyed instantaneously while he was standing there. It sounds like the cop wanted a short cut to getting good evidence.”

While courts have yet to issue definitive guidance, police officers continue to confront the issue. Yesterday, police in Concord announced that they had arrested a 35-year-old Manchester man and charged him with spray-painting an Interstate bridge.

New Hampshire State Police suspect he might have tagged other locations, and said they may file additional charges if they find pictures of other tags. But they are awaiting a search warrant before searching the phone.